DOCSLIB.ORG

The Founders' Origination Clause and Implications for the Affordable Care

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Founders' Origination Clause and Implications for the Affordable Care THE FOUNDERS’ ORIGINATION CLAUSE AND IMPLICATIONS FOR THE AFFORDABLE CARE ACT ROBERT G. NATELSON* This Article is the first comprehensive examination of the original legal force of the Constitution’s Origination Clause, drawing not merely on the records of the 1787–90 constitutional debates, but on Founding-Era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate’s amendment power. For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to ac- quire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a Senate-originated “tax.” The Arti- cle concludes that this “tax” was a valid Senate amendment to a House-adopted revenue bill. The Article also concludes, however, that the amendments that added the PPACA’s regulatory provisions and appropriations were outside the Senate’s amendment power. INTRODUCTION ............................................................ 633 I. THE UNLOVED CLAUSE? SURVEY OF THE CONSTITUTIONAL CONVENTION AND RATIFICATION DEBATES ........................................ 636 * Robert G. Natelson was a law professor for twenty-five years at three different universities and is currently is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. His works and biography are listed at http://constitution.i2i.org/about [http://perma.cc/4Z4G-FCKX]. The author wishes to thank the following for invaluable assistance: The Inde- pendence Institute, Denver, Colorado, and its research director, Dave Kopel; Vir- ginia Dunn, Archives & Library Reference Services Manager, Library of Virginia; Joanna Innes, Fellow and Tutor in Modern History Somerville College, University of Oxford, England; Seth Barrett Tillman, Lecturer in Law, National University of Ireland Maynooth; Jane Thompson, Associate Director of Faculty Services and Research, William A. Wise Library, University of Colorado; and Daniel Smyth, Editor, LibertyBlog.org. All interpretations and any mistakes are the author’s own. 630 Harvard Journal of Law & Public Policy [Vol. 38 A. The Constitutional Convention ................... 636 B. The Ratification Debates ............................... 640 C. Non-Conclusions ........................................... 646 II. FOUNDING-ERA LEGISLATIVE PRACTICE: THE BRITISH PARLIAMENT ............................................ 646 A. How Parliamentary Practice Influenced the Founders .................................................. 646 B. Parliament and the Power of the Purse ...... 649 1. The Scope of the Term “Money Bill” ... 649 2. Hotch-Potch Bills and Tacking .............. 652 3. The Dispute Over Amendments by the Lords .................................................. 653 4. What Was An “Amendment?” ............. 657 C. Summary of British Practice ........................ 664 III. FOUNDING-ERA LEGISLATIVE PRACTICE: AMERICAN CONSTITUTIONS AND LEGISLATURES ........................................................ 665 A. American Constitution-Drafting: Background Information .............................. 665 B. How the American States Adopted New Rules ................................................................ 669 C. How the American Rules Continued to Evolve .............................................................. 672 D. The Scope of “Amendment” in American Practice ............................................................ 680 E. Summary of American Practice ................... 690 IV. WHAT THE CONSTITUTIONAL DEBATES TELL US ABOUT THE REASONS FOR HOUSE ORIGINATION AND THEIR SIGNIFICANCE .................................... 691 A. The Policies Behind House Origination ..... 691 B. Significance of the Policies Behind House Origination ..................................................... 700 V. WHAT THE CONSTITUTIONAL DEBATES TELL US ABOUT THE SCOPE OF AN “AMENDMENT” .......... 700 A. The Policies Served By the Amendment Qualifier .......................................................... 700 B. How Broad Was the Amendment Qualifier? ....................................................... 703 VI. CONCLUSION: THE ORIGINATION CLAUSE AND SOME IMPLICATIONS FOR THE PPACA ................ 705 No. 2] The Founders' Origination Clause 631 ***1 1. Bibliographical Note: This footnote collects those sources cited more than once, including prior published research by the author. Convention Proceedings THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 2d ed. 1836) [hereinafter ELLIOT’S DEBATES]; THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., 1937) [hereinafter FARRAND’S RECORDS]. Dictionaries (all unpaginated) JOHN ASH, THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1775) [hereinafter ASH]; N. BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DIC- TIONARY (25th ed. 1783) [hereinafter BAILEY]; FREDERICK BARLOW, THE COMPLETE ENGLISH DICTIONARY (1772–73) [hereinafter BARLOW]; ALEXANDER DONALDSON, AN UNIVERSAL DICTIONARY OF THE ENGLISH LANGUAGE (1763) [hereinafter DON- ALDSON]; THOMAS DYCHE & WILLIAM PARDON, A NEW GENERAL ENGLISH DIC- TIONARY (16th ed. 1777) [hereinafter DYCHE & PARDON]; SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (8th ed. 1786) [hereinafter JOHNSON]; WILLIAM KENRICK, A NEW DICTIONARY OF THE ENGLISH LANGUAGE (1773) [here- inafter KENRICK]; WILLIAM PERRY, THE ROYAL STANDARD ENGLISH DICTIONARY (1st ed. 1788) [hereinafter PERRY]; THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (3d ed. 1789) [hereinafter SHERIDAN]. Legislative and other Governmental Publications British: WILLIAM COBBETT, PARL. HIST. ENG. (vols. 13–28, 1803–16) [hereinafter COB- BETT]; JOURNALS OF THE HOUSE OF COMMONS [hereinafter H.C. JOUR.]; JOURNALS OF THE HOUSE OF LORDS [hereinafter H.L. JOUR.]; THE PARLIAMENTARY REGISTER; OR HISTORY OF THE PROCEEDINGS AND DEBATES OF THE HOUSE OF COMMONS [hereinafter PARLIAMEN- TARY REGISTER] (mult. vols.). Federal: JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789 (1904–37) [hereinafter J. CONT’L CONG.]. Connecticut: 1-5 THE PUBLIC RECORDS OF THE STATE OF CONNECTICUT (Charles J. Hoad- ly & Leonard Woods Labaree eds. 1894–1943) [hereinafter CONNECTICUT RECORDS]. Massachusetts: A JOURNAL OF THE HONORABLE HOUSE OF REPRESENTATIVES OF THE COMMONWEALTH OF MASSACHUSETTS. BEGUN AND HELD AT BOSTON IN THE COUNTY OF SUFFOLK, ON WEDNESDAY THE TWENTY-SIXTH DAY OF MAY, ANNO DOMINI, 1784 [herein- after MASS. H.R. JOUR.]. Maryland: The Senate and House of Delegates Journals are cited MD. H.D. JOUR. and MD. SEN. JOUR. Each session is free standing with its own pagination. New Hampshire: EARLY STATE PAPERS OF NEW HAMPSHIRE (Albert Stillman Batchellor ed., 1891–92) [hereinafter N.H. PAPERS]. New Jersey: VOTES AND PROCEEDINGS OF THE GENERAL ASSEMBLY OF THE STATE OF NEW-JERSEY [hereinafter N.J. PROCEEDINGS]. New York: VOTES AND PROCEEDINGS OF THE ASSEMBLY OF THE STATE OF NEW- YORK, from 1780 through 1790 [hereinafter N.Y. ASSEM. JOUR.] & JOURNAL OF THE 632 Harvard Journal of Law & Public Policy [Vol. 38 SENATE OF THE STATE OF NEW YORK [hereinafter N.Y. SEN. JOUR.], both available at the Gale Database, Eighteenth Century Collections Online. North Carolina: THE STATE RECORDS OF NORTH CAROLINA (Walker Clark ed., 1895– 1905) [hereinafter N.C. RECORDS]. Rhode Island: 8–10 RECORDS OF THE STATE OF RHODE ISLAND AND PROVIDENCE PLAN- TATIONS IN NEW ENGLAND (John Russell Bartlett ed., 1863–65) [hereinafter R.I. RECORDS]. South Carolina: JOURNALS OF THE GENERAL ASSEMBLY AND HOUSE OF REPRESENTATIVES 1776-1780 (William Edwin Hemphill, Wylma Anne Wates & R. Nicholas Olsberg eds, 1970) [hereinafter S.C. H.R. JOUR. (1776-80); JOURNAL OF THE HOUSE OF REPRESENTATIVES OF SOUTH CAROLINA, JAN. 8, 1782–FEB. 26, 1782 (A.S. Salley, Jr. ed., 1916) [hereinafter S.C. H.R. JOUR. (1782)]. Pennsylvania: MINUTES OF THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF PENN- SYLVANIA (1784–89) [hereinafter PA. GEN. ASSEM. MIN.]. Virginia: JOURNAL OF THE HOUSE OF DELEGATES OF THE COMMONWEALTH OF VIRGINIA (1827) [hereinafter VA. H.D. JOUR.]; JOURNAL OF THE SENATE OF THE COMMONWEALTH OF VIRGINIA (1785–90) (Thomas W. White 1827–28) [hereinafter VA. SEN. JOUR.]. Other Works ROGER ACHERLEY, THE BRITTANIC CONSTITUTION (1759) [hereinafter ACHERLEY]. JEAN-LOUIS DE LOLME, THE CONSTITUTION OF ENGLAND (David Lieberman ed., 2007) (1771) [hereinafter DE LOLME]. John Dickinson, Letters from a Farmer in Pennsylvania, reprinted in EMPIRE AND NATION 1 (Forrest McDonald ed., 2d ed. 1999) [hereinafter DICKINSON]. THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Merrill Jensen, John P. Kaminski, & Gaspare J. Saladino eds., 1976–2012) [hereinafter DOCUMEN- TARY HISTORY]. PAUL EINZIG, THE CONTROL OF THE PURSE: PROGRESS AND DECLINE OF PARLIAMENT’S FINANCIAL CONTROL (1959) [hereinafter EINZIG]. SYDNEY GEORGE FISHER, THE EVOLUTION OF THE CONSTITUTION OF THE UNITED STATES (1897) [hereinafter FISHER]. ALEXANDER HAMILTON, JAMES MADISON & JOHN JAY, THE FEDERALIST (George W. Cary & James McClellan eds., 2001) [hereinafter THE FEDERALIST]. JOHN HATSELL, PRECEDENTS OF PROCEEDINGS IN THE HOUSE OF COMMONS (2d ed, 1785) (3 vols.) [hereinafter HATSELL]. DAVID W. HAYTON, INTRODUCTION, THE HISTORY OF PARLIAMENT: THE HOUSE OF COMMONS 1690–1715 (D. Hayton, E. Cruickshanks & S. Handley eds., 2002), available at http://www.histparl.ac.uk/volume/1690-1715/survey/business-house [http://perma.cc/
Load more

Recommended publications
  • This Constitution: a Bicentennial Chronicle, Nos. 14-18
    DOCUMENT RESUME ED 300 290 SO 019 380 AUTHOR Mann, Shelia, Ed. TITLE This Constitution: A Bicentennial Chronicle, Nos. 14-18. INSTITUTION American Historical Association, Washington, D.C.; American Political Science Association, Washington, D.C.; Project '87, Washington, DC. SPONS AGENCY National Endowment for the Humanities (NFAH), Washington, D.C. PUB DATE 87 NOTE 321p.; For related document, see ED 282 814. Some photographs may not reproduce clearly. AVAILABLE FROMProject '87, 1527 New Hampshire Ave., N.W., Washington, DC 20036 nos. 13-17 $4.00 each, no. 18 $6.00). PUB TYPE Collected Works - Serials (022) -- Historical Materials (060) -- Guides - Classroom Use - Guides (For Teachers) (052) JOURNAL CIT This Constitution; n14-17 Spr Sum Win Fall 1987 n18 Spr-Sum 1988 EDRS PRICE MFO1 Plus Postage. PC Not Available from EDRS. DESCRIPTORS Class Activities; *Constitutional History; *Constitutional Law; History Instruction; Instructioral Materials; Lesson Plans; Primary Sources; Resource Materials; Secondary Education; Social Studies; United States Government (Course); *United States History IDENTIFIERS *Bicentennial; *United States Constitution ABSTRACT Each issue in this bicentennial series features articles on selected U.S. Constitution topics, along with a section on primary documents and lesson plans or class activities. Issue 14 features: (1) "The Political Economy of tne Constitution" (K. Dolbeare; L. Medcalf); (2) "ANew Historical Whooper': Creating the Art of the Constitutional Sesquicentennial" (K. Marling); (3) "The Founding Fathers and the Right to Bear Arms: To Keep the People Duly Armed" (R. Shalhope); and (4)"The Founding Fathers and the Right to Bear Arms: A Well-Regulated Militia" (L. Cress). Selected articles from issue 15 include: (1) "The Origins of the Constitution" (G.
    [Show full text]
  • Commission of Necessary and Proper Clause
    Commission Of Necessary And Proper Clause How overdressed is Zedekiah when elongated and diagnostic Shayne outrank some firm? Shorty squander coolly. Segmented and creaturely Lon hacks her trichinisation skyjack while Hodge chins some hypnopaedia incessantly. The united states and necessary business Model contracts & clauses International Chamber of Commerce. Congressional Oversight of the lead Community. And lacks authority and rule and the requirements of the Electoral Count Act. The apportionment plan of justice commission established under Article IV Part. A parole authority shall fill the right to be announce at a parole hearing to any. No other provision of the constitution shall impair. County shall settle all judicial nominating commission shall be cited by proper clause. Fair Debt Collection Practices Act Federal Trade Commission. The commission front line may, in this understanding this article i am certain provisions for outdoor heritage; jurisdiction shall consist only. 4Provided that in relation to the insist of Jammu and Kashmir these clauses shall have. Icc model emergency law have access for extradition shall grant of appeals shall have an opportunity of commission dismisses a formal approach regulations for. Such regulations shall also somewhat appropriate provision for each employee or. THE CONSTITUTION UNITED STATES OF AMERICA GovInfo. Powers of delegate any officer of representatives their services as state, fish are sufficient funds received a clause of commission and necessary. Constitution Nebraska Legislature. CTEMPCopy of SCR113 Original rev 0wpd Louisiana State. No person an amendment or not covered by yeas and perform all cases for their meetings shall be supposed that. Necessary use Proper or Article I Legislative.
    [Show full text]
  • Download PDF on Financial Privilege
    Report Financial Privilege The Undoubted and Sole Right of the Commons? Sir Malcolm Jack KCB PhD FSA Richard Reid PhD FINANCIAL PRIVILEGE THE UNDOUBTED AND SOLE RIGHT OF THE COMMONS? By Sir Malcolm Jack KCB PhD FSA and Richard Reid PhD Acknowlegements The authors thank The Constitution Society for commissioning and publishing this paper. First published in Great Britain in 2016 by The Constitution Society Top Floor, 61 Petty France London SW1H 9EU www.consoc.org.uk © The Constitution Society ISBN: 978-0-9954703-0-9 © Malcolm Jack and Richard Reid 2016. All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the publisher of this book. FINANCIAL PRIVILEGE 3 Contents Acknowlegements 2 About the Authors 4 Summary 5 PART 1 Conventions in Respect of Financial Privilege 6 PART 2 Parliament Acts 19 PART 3 Handling of Bills with Financial Provisions 30 PART 4 Secondary Legislation 41 PART 5 The Strathclyde Review 51 Appendix 1 Parliament Act 1911 62 Appendix 2 Parliament Act 1949 67 4 FINANCIAL PRIVILEGE About the Authors Sir Malcolm Jack was Clerk of the House of Commons from 2006–2011. He is editor of the current, twenty-fourth edition of Erskine May’s Parliamentary Practice, 2011. He lectures and writes on constitutional and historical subjects, having published widely on the history of ideas as well as on aspects of British, European and South African history.
    [Show full text]
  • 11-01-2021 These Matters Were Called on for Hearing Today
    IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION REVIEW PETITION (CIVIL) NO.¼¼¼¼¼/2021 (Diary No. 45777/2018) IN WRIT PETITION (CIVIL) NO. 494 OF 2012 Beghar Foundation through its Secretary and Anr. Petitioner(s) versus Justice K.S. Puttaswamy (Retd.) and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 3948 OF 2018 IN WRIT PETITION (CIVIL) NO. 231 OF 2016 Jairam Ramesh Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 22 OF 2019 IN WRIT PETITION (CIVIL) NO. 1014 OF 2017 1 M.G. Devasahayam Petitioner(s) versus Union of India and Anr. Respondent(s) with REVIEW PETITION (CIVIL) NO. 31 OF 2019 IN WRIT PETITION (CIVIL) NO. 1058 OF 2017 Mathew Thomas Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO.¼¼¼¼¼/2021 (Diary No. 48326/2018) IN WRIT PETITION (CIVIL) NO. 494 OF 2012 Imtiyaz Ali Palsaniya Petitioner(s) versus Union of India and Ors. Respondent(s) with REVIEW PETITION (CIVIL) NO. 377 OF 2019 IN WRIT PETITION (CIVIL) NO. 342 OF 2017 2 Shantha Sinha and Anr. Petitioner(s) versus Union of India and Anr. Respondent(s) with REVIEW PETITION (CIVIL) NO. 924 OF 2019 IN WRIT PETITION (CIVIL) NO. 829 OF 2013 S.G. Vombatkere and Anr. Petitioner(s) versus Union of India and Ors. Respondent(s) O R D E R Permission to file Review Petition(s) is granted. Delay condoned. Prayer for open Court/personal hearing of Review Petition(s) is rejected. The present review petitions have been filed against the final judgment and order dated 26.09.2018.
    [Show full text]
  • THE NEGATIVE IMPLICATIONS of the COMMERCE CLAUSE* Jom B
    THE NEGATIVE IMPLICATIONS OF THE COMMERCE CLAUSE* Jom B. SHoLLEYt ON MARCH 4, 1935, the United States Supreme Court held in Baldwin v. Seelig, that the state of New York had no power to protect its milk Producers against underselling by the producers of other states even though the former were by law forbidden to sell below prescribed prices,2 and the resulting competition would go far to wreck the whole statutory system. The particular statute condemned forbade in effect the sale of imported milk in New York unless its producers had been paid the equivalent of the New York standard price. The gist of the opin- ion of Mr. Justice Cardozo is contained in the following excerpts: If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce be- tween the states to the power of the nation.3 What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation. Formulas and catchwords are subor- dinate to this overmastering requirement. Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrieragainst competition with the products of another state or the labor of its residents. Restrictions so contrived are an unreasonable clog upon the mobility of commerce. They set up what is equivalent to a rampart of customs duties designed to neutralize advantages belonging to the place of origin.
    [Show full text]
  • Congress' Power of the Purse
    Congress' Power of the Purse Kate Stitht In view of the significance of Congress' power of the purse, it is surprising that there has been so little scholarly exploration of its contours. In this Arti- cle, Professor Stith draws upon constitutional structure, history, and practice to develop a general theory of Congress' appropriationspower. She concludes that the appropriationsclause of the Constitution imposes an obligation upon Congress as well as a limitation upon the executive branch: The Executive may not raise or spend funds not appropriatedby explicit legislative action, and Congress has a constitutional duty to limit the amount and duration of each grant of spending authority. Professor Stith examinesforms of spending authority that are constitutionally troubling, especially gift authority, through which Congress permits federal agencies to receive and spend private contri- butions withoutfurther legislative review. Other types of "backdoor" spending authority, including statutory entitlements and revolving funds, may also be inconsistent with Congress' duty to exercise control over the size and duration of appropriations.Finally, Professor Stith proposes that nonjudicial institu- tions such as the General Accounting Office play a larger role in enforcing and vindicating Congress' power of the purse. TABLE OF CONTENTS I. THE CONSTITUTIONAL LAW OF APPROPRIATIONS 1346 A. The Constitutional Prerequisitesfor Federal Gov- ernment Activity 1346 B. The Place of Congress' Power To Appropriate in the Structure of the Constitution 1348 C. The Constitutional Function of "Appropriations" 1352 D. The Principlesof the Public Fisc and of Appropria- tions Control 1356 E. The Power to Deny Appropriations 1360 II. APPROPRIATIONS CONTROL: THE LEGISLATIVE FRAME- WORK 1363 t Associate Professor of Law, Yale Law School.
    [Show full text]
  • The Dormant Commerce Clause and State-Mandated Preference Laws in Public Contracting: Developing a More Substantive Application of the Market-Participant Exception
    Michigan Law Review Volume 93 Issue 8 1995 The Dormant Commerce Clause and State-Mandated Preference Laws in Public Contracting: Developing a More Substantive Application of the Market-Participant Exception Benjamin C. Bair University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Commercial Law Commons, Constitutional Law Commons, and the Government Contracts Commons Recommended Citation Benjamin C. Bair, The Dormant Commerce Clause and State-Mandated Preference Laws in Public Contracting: Developing a More Substantive Application of the Market-Participant Exception, 93 MICH. L. REV. 2408 (1995). Available at: https://repository.law.umich.edu/mlr/vol93/iss8/5 This Note is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. The Dormant Commerce Clause and State-Mandated Preference Laws in Public Contracting: Developing a More Substantive Application of the Market-Participant Exception Benjamin C. Bair INTRODUCTION You are a state legislator. Your state's highway construction in­ dustry has seen better days, and unemployment is rising. Neverthe­ less, cities and counties in your state are hiring nonresident construction workers and buying cement and gravel from nonresi­ dent suppliers. Your constituents are upset that their tax dollars are going to outsiders, so you decide to draft a bill requiring all local governments1 in your state to fill at least half of their highway con­ struction positions with state residents.
    [Show full text]
  • Judicial Review and Money Bills
    NIPFP Working Working paperpaper seriesseries Judicial Review and Money Bills No. 192 07-Mar-2017 Pratik Datta, Shefali Malhotra and Shivangi Tyagi National Institute of Public Finance and Policy New Delhi Working paper No. 192 Judicial Review and Money Bills 07 March 2017 Abstract Under the Constitution of India, for a bill to be enacted into a law, it has to be approved by both Houses of the Pratik Datta, Shefali Parliament - the Lower House (Lok Sabha) and the Upper House (Rajya Sabha). There is one exception to this gen- Malhotra and eral rule. A bill certified as a ‘money bill’ by the speaker Shivangi Tyagi of the Lower House can be enacted into a law by the Lower National Institute of House alone, without any approval from the Upper House. The scope of what could constitute a ‘money bill’ is defined Public Finance and in the Constitution of India. Yet, it is possible that a bill Policy, which does not fall within the scope of this definition could New Delhi be incorrectly certified as a ‘money bill’ by the speaker and enacted into a law without the approval of the Upper House. [email protected], The Constitution of India categorically states that ‘if any [email protected], question arises whether a Bill is a Money Bill or not, the [email protected] decision of the Speaker of the House of the People thereon shall be final’. Does this provision imply that the Indian Supreme Court cannot review whether the speaker’s certifi- cation of a bill as a ‘money bill’ is correct or not? And if it is actually incorrect, can the Supreme Court not strike down such a law for being unconstitutional? These questions are of immense contemporary relevance in India and form the central research theme of this article.
    [Show full text]
  • Rejecting Origination Clause Challenges Merely Embody “Two Exceptions” to the General “Presumpt[Ion]” That “[A]Ll Taxes” Are Subject to the Clause
    United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued May 8, 2014 Decided July 29, 2014 No. 13-5202 MATT SISSEL, APPELLANT v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-01263) Timothy M. Sandefur argued the cause for appellant. With him on the briefs were Paul J. Beard II and Daniel A. Himebaugh. Theodore Hadzi-Antich entered an appearance. John C. Eastman and Anthony T. Caso were on the brief for amicus curiae Center for Constitutional Jurisprudence in support of appellant. Lawrence J. Joseph was on the brief for amicus curiae Association of American Physicians and Surgeons in support of appellant. Joseph E. Schmitz and Paul D. Kamenar were on the brief 2 for amici curiae U.S. Representatives Trent Franks, et al. in support of appellant. Alisa B. Klein, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Mark B. Stern, Attorney. Before: ROGERS, PILLARD and WILKINS, Circuit Judges. Opinion for the Court filed by Circuit Judge ROGERS. ROGERS, Circuit Judge: Section 5000A of the Patient Protection and Affordable Care Act, 26 U.S.C. § 5000A, mandates that as of January 2014, non-exempt individuals maintain minimum health care coverage or, with limited exceptions, pay a penalty. Matt Sissel, who is an artist and small-business owner who serves from time to time on active duty with the National Guard, appeals the dismissal of his complaint alleging that the mandate violates the Commerce Clause, U.S.
    [Show full text]
  • Revolutionary Period (1763-1789) Part 3: Constitutional Convention
    Revolutionary Period (1763-1789) Part 3: Constitutional Convention The Constitutional Convention was held in 1787 in Philadelphia. Fifty-five delegates met to revise, or improve, the nation’s first constitution, the Articles of Confederation. The Articles were so weak, the framers decided to a write a new constitution. The U.S. Constitution created a strong national government, but with limits against the abuse of power. After the convention ended, the states ratified the new constitution. Problems under the Delegates meet at States ratify the new Articles of Confederation Constitutional constitution. Examples: no president Convention in 1787 and States have too write a new constitution. much power The most important conflict at the Convention was over Another conflict was over the counting of slaves when representation in the legislative branch (Congress). determining the number of representatives each state received in the House of Representatives. Virginia Plan New Jersey Plan Northern States Southern States -large state plan -small state plan -did not want to count -wanted to count -2-house legislature -1-house legislature slaves as part of the slaves as part of the -proportional -equal representation population population representation (population) Great Compromise 3/5 Compromise -2-house legislature -three-fifths of all -House of Representatives (proportional slaves would be representation) counted as part of the -Senate – equal representation (2 per population for state) representation Ratification Terms to Know Federalists – supported ratification of the Constitution Delegate - representative Federalist Papers – written by James Madison, Alexander Hamilton, Framer - someone who and John Jay is support of ratification helped write the Constitution Anti-Federalists – opposed ratification of the Constitution, mainly Ratify - to approve or because it did not have a bill of rights accept .
    [Show full text]
  • Supreme Court of the United States
    i No. 15-543 In the Supreme Court of the United States MATT SISSEL, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SER- VICES, et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit BRIEF OF AMICUS CURIAE CENTER FOR CONSTITUTIONAL JURISPRUDENCE IN SUPPORT OF PETITIONER JOHN C. EASTMAN ANTHONY T. CASO Counsel of Record Center for Constitutional Jurisprudence c/o Chapman University Fowler School of Law One University Drive Orange, CA 92866 Telephone: (714) 628-2666 E-Mail: [email protected] Counsel for Amicus Curiae Center for Constitutional Jurisprudence i QUESTION PRESENTED The Congressional Budget Office estimated that the Senate-crafted Patient Protection and Affordable Care Act would raise more than $220 billion in new federal tax revenue over a ten-year period. Is such a measure a “bill for raising revenue” that must origi- nate in the House of Representatives pursuant to Ar- ticle I, Section 7? ii TABLE OF CONTENTS QUESTION PRESENTED .......................................... i TABLE OF AUTHORITIES ...................................... iii IDENTITY AND INTEREST OF AMICUS CURIAE ............................................... 1 SUMMARY OF ARGUMENT ..................................... 2 REASONS FOR GRANTING REVIEW ..................... 3 I. The Design of Government in the Constitution Includes Structural Limitations on the Exercise of Power in Order to Protect Individual Liberty and Self-Government. .......................................... 3 II. The Origination Clause Is a Critical Component of Structural Limitation on Congress’s Power. ...................................................... 6 CONCLUSION .......................................................... 10 iii TABLE OF AUTHORITIES Cases Bond v. United States, 131 S.Ct. 2355 (2011) .................................................... 1 Bowsher v. Synar, 478 U.S. 714 (1986) .................................................... 6, 9 Clinton v. City of New York, 524 U.S.
    [Show full text]
  • Applying Precedents Activity—Answer Key
    Applying Precedents Activity Applying Precedents Activity—Answer Key Comparison case: Gibbons v. Ogden (1824) Precedent case: McCulloch v. Maryland (1819) What you need to know before you begin: When the Supreme Court decides a case, it clarifies the law and serves as guidance for how future cases should be decided. Before the Supreme Court makes a decision, it always looks to precedents—past Supreme Court decisions about the same topic—to help make the decision. A principle called stare decisis (literally “let the decision stand”) requires that the precedent be followed. If the case being decided is legally identical to a past decision, then the precedent is considered binding and the Supreme Court must decide the matter the same way. However, cases that make it to the Supreme Court are typically not completely identical to past cases, and justices must consider the similarities and differences when deciding a case. The process of comparing past decisions to new cases is called applying precedent. Lawyers often argue for their side by showing how previous decisions would support the Supreme Court deciding in their favor. This might mean showing how a previous decision that supports their side is analogous (similar) to the case at hand. It can also involve showing that a previous decision that does not support their side is distinguishable (different) from the case they are arguing. How it’s done: In this exercise, you will analyze a precedent and compare it to Gibbons v. Ogden. You have been provided with information about two cases: 1) the background, facts, issue, and constitutional provisions/precedents of the comparison case (Gibbons v.
    [Show full text]